2018 (12) TMI 30 - AT - Customs

Refund of SAD - N/N. 102/2007 Cus. - rejection on the ground that the refund claim filed by the appellant is time-barred as per Customs Notification 93/2008 dated 01.08.2008 amending Notification 102/2007 - Held that - The decision of the Delhi High Court in the Sony India Pvt. Ltd. 2014 (4) TMI 870 - DELHI HIGH COURT as well as the Gulati Sales Corporation 2017 (11) TMI 1300 - DELHI HIGH COURT wherein it has been held that no time limit is prescribed for claiming the refund of SAD. The said decision of the Delhi High Court was followed by the Tribunal in the case of Purab Textile Pvt. Ltd. Vs. CC 2015 (6) TMI 998 - CESTAT MUMBAI and has held that limitation as prescribed under Section 27 of the Customs Act is not applicable in the case of refund of SAD - refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Refund application time-barred under Customs Notification 93/2008
- Applicability of limitation period for SAD refund claims
- Interpretation of Section 27 and Notification No. 93/2008-Cus.
- Comparison of decisions by different High Courts and Tribunals

Analysis:

The appeal was against the rejection of a refund claim by the Commissioner (Appeals) due to being time-barred under Customs Notification 93/2008. The appellant filed a refund application for 4% additional duty refund under Notification No. 102/2007 Cus. The appellant argued that no limitation period should apply to SAD refund claims as the right to claim refund arises only after a sale, a market-driven event. They cited the Delhi High Court's decision in Sony India Pvt. Ltd. case, upheld by the Supreme Court, stating that no time limit can be imposed for SAD refund claims. The appellant also referred to the case of Gulati Sales Corporation where it was held that SAD refund was not time-barred. The Revenue defended the impugned order by citing contrary decisions from different High Courts and Tribunals.

The Tribunal analyzed the arguments and decisions cited by both parties. It noted that the Commissioner (Appeals) relied on a Single Member decision regarding the limitation period, while the appellant relied on the Sony India Pvt. Ltd. case and subsequent decisions supporting the non-applicability of a time limit for SAD refund claims. The Tribunal highlighted that the Delhi High Court's stance in Sony India Pvt. Ltd. case emphasized that the right to claim refund accrues only after a sale, making it inappropriate to impose a limitation period before this event. The Tribunal also mentioned that the Division Bench and another Tribunal had previously ruled in favor of no time limit for SAD refund claims, aligning with the Sony India Pvt. Ltd. decision.

Ultimately, the Tribunal found the impugned order unsustainable in law. It set aside the order and allowed the appellant's appeal based on the precedent set by the Sony India Pvt. Ltd. case and subsequent consistent decisions. The Tribunal's decision was influenced by the interpretation of the Customs Act provisions and the reasoning provided by the Delhi High Court in the Sony India Pvt. Ltd. case, emphasizing the absence of a limitation period for SAD refund claims until the occurrence of a sale.